was due to the fact that Roman society mainly relied on the use of slaves.The situation was different now, when, in Savigny’s own words:“we have no slaves, wherefore the relationship in question has become a very important and frequent necessity”.That was the reason why the relationship between master and servant did not belong to the law of contract, but to family law.157 Savigny’s conclusion was not uncontroversial.Before long a contractual approach was to gain ground in the scholarly treatment of labour relations. BernhardWindscheid, one of the most outstanding scholars of the “Pandectist” school, like Savigny emphasised that family law contained certain “ethical” aspects. In Pandektenrecht he wrote that the family was not only, or even primarily, a legal relationship. It was regulated first of all by moral law, which imposed only duties and gave no rights.158 However, and in sharp divergence from Savigny,Windschied assigned only three kinds of matters to this family law, namely husband-wife, parents-children, and the tutelage (Vormundschaft).159The relationship between master and servant, on the contrary,Windscheid without further comments restored to the institution of Miete (hiring), and in the same field as contracts of sale and exchange. Referring to some passages in Corpus Iuris Civilis concerning locatio conductio,Windscheid declared that the institution of hiring was aimed at use (Gebrauch) in return for money: one person lets another use either a thing or a labour (normally his own) and the other person promises him money in return.160 Windscheid separated the hiring of things (Sachmiete) from the hiring of services (Dienstmiete). But he also drew a sharp dividing line between the kind of service contracts that were aimed at services as such (locatio conductio operarum), and the“special cases”, c o n t i n u i t y a n d c o n t r ac t 79 157 Savigny System I, pp. 366-367. 158 “Die Familie ist nicht allein, und nicht vorzugsweise, ein Rechtsverhältniss; sie empfängt ihre Ordnung zunächst durch das Sittengesetz, sie legt Pflichten auf und gibt nicht Rechte”. Wind-scheid 1874-75, I, p. 96; Björne 1984, pp. 229-234. 159 Windscheid 1874-75, II, pp. 836-930. 160 Windscheid referred to Institutiones 3. 24, Digesta 19.2 and Codex 4.65 in Corpus Iuris Civilis.Windscheid 1874-75, II, p. 491.
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